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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Monday, August 24, 2015

Videotaped excessive force claim goes to jury

This my favorite Section 1983 case of the year. A divided Court of Appeals holds that a jury must determine whether an Occupy Wall Street protester has an excessive force claim against two police officers who pepper-sprayed her after she refused to give her name and resisted arrest outside a Starbucks at 5:00 in the morning.

The case is Brown v. City of New York. Brown tried to enter Starbucks because she had to go to the bathroom. The Starbucks was closed, and an employee called the police because a noisy crowd, bladders a-bursting, was pounding on the door. When the officers arrived, they asked plaintiff for her identification without explanation, which she declined to provide. The officers then arrested Brown, and after she resisted the handcuffs, they took her to the ground, where she continued to resist until the officers pepper-sprayed her twice. At that point, she was cuffed and taken to the police station.

I think that excessive force claims are the most shocking civil rights violations, because true excessive force means the police are abusing their authority in public and injuring a civilian without good reason. But that is also why these cases are hard to win; we all personally know police officers and cannot imagine them using excessive force, and most of us think that most officers are trying to do a good job. Here is the legal standard for evaluating an excessive force claim, stemming from the Supreme Court's Graham v. Conner decision:

Determining excessiveness requires "a careful balancing of the nature
and quality of the intrusion on the individual's Fourth Amendment
interests against the countervailing governmental interests at stake." This balancing, the Court
noted, "requires careful attention to the facts and circumstances of
each particular case, including" the following three factors:

1. "[T]he severity of the crime at issue,"

2. "whether the suspect poses an immediate threat to the safety of the officers or others," and

3. "whether he is actively resisting arrest or attempting to evade arrest by flight."

And, ... the "'reasonableness' of a particular use
of force must be judged from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight." Id. The
Court also made clear that the standard is one of objective
reasonableness, and the officer's state of mind, whether evil or benign,
is not relevant.

This "totality of the circumstances" test means that many excessive force claims go to trial, as the court cannot resolve these questions on a cold record without live testimony. Juries are better able to sift through these issues than a judge sitting in his chambers. In this case, though, it's not just deposition testimony that tells the story but video footage. The Court of Appeals (Newman and Calabresi) says the case goes to trial. The offense for which the officers initially arrested Brown (disorderly conduct, for the loud banging on the Starbucks door) was relatively minor. She did not try to run away or threaten the officers. While the videotape shows Brown was in fact resisting arrest, the Second Circuit's reasoning is interesting:

The officers could be entitled to a summary judgment only if there existed a per se rule that an arrestee’s refusal to submit to the easy application of handcuffs always permitted police officers to use substantial force, including taking a person to the ground and incapacitating her with pepper stray, to accomplish handcuffing. We know of no such rule. Indeed, by focusing only on resistance to the arrest, such a rule would disregard the three-factor analysis that the Supreme Court required in Graham. Even resistance sufficient to result in conviction for resisting arrest does not preclude a finding of “excessive force in effectuating the arrest.”

...

Here, on the undisputed facts, even shaded with the officers’ account of the episode, no reason appears why, with Brown standing, each officer could not have simply held one of her arms, brought it behind her, and put handcuffs on her wrists. Or they could have simply surrounded her, at least for a few moments, making it clear that she could not leave until she submitted to handcuffing. We do not mean to imply that the availability of a less aggressive way of accomplishing an arrest necessarily means that the technique that was used is thereby shown to have been excessive. Police officers must be entitled to make a reasonable selection among alternative techniques for making an arrest. But when the amount of force used by two police officers involves taking a 120-pound woman to the ground and twice spraying her directly in the face with pepper spray, the availability of a much less aggressive technique is at least relevant to making the ultimate determination of whether excessive force was used. The assessment of a jury is needed in this case.

What makes the case even more interesting is that Judge Jacobs' lengthy dissent calls out the majority for being too soft on Brown and too critical of the police for not subduing her in other ways. Jacobs posts three videos online so we can all see how she actively resisted arrest. Apart from making fun of Occupy Wall Street protesters, endorsing the officers' sarcastic comments to Brown when she asked where she could go to the bathroom (they told her to "piss in the park") and accusing Borwn (through post-arrest text messages) of "claiming the glamour of having spent a night in jail after having resisting arrest," Judge Jacobs revives his oft-repeated claim that cases like this will place the defending officers' personal finances at risk and potentially force them to spend their childrens' college funds to pay out the liability judgment. In addition, Judge Jacobs provides a blow-by-blow account of Brown's interaction with the officers. Judge Jacobs concludes with this:

The only excessive features of this case are the elaborate constitutionalization of the routine arrest of a disorderly individual, the unfair attack on the professional reputation of two NYPD officers, the absurd waste of judicial time that has ensued and will follow on remand, and the imposition on the valuable time of jurors.

The majority objects to Judge Jacobs' dissent in a couple of ways. First, as for the "piss in the park" comments, the majority notes that police officers are supposed to be courteous, not sarcastic, in dealing with pedestrians. More importantly, the majority takes issue with the idea that police officers could be ruined financially from a nonsense settlement or jury verdict. Judge Newman writes:

The dissent speculates, without any support in the record, that, in the event that a jury finds the police officers liable, the judgment will be paid out of their children’s college funds. For support, the author of the dissent cites only his own previous speculation, see Gonzalez v. City of Schenectady, 728 F.3d 149, 162 (2d Cir. 2013). A far more likely speculation is that a payment, if any, will be made by the City after a settlement. See, e.g., “New York City Settles With 6 Occupy Wall Street Protesters Pepper-Sprayed by the Police,” New York Times, July 6, 2015. And, if a jury were to hold the officers liable for damages, payment is almost certainly going to be made by the City by way of indemnification or by the police union. See Richard Emery & Illan Margalit Maazel, Why Civil Rights Lawsuits Do Not Deter Police Misconduct: The Conundrum of Indemnification and a Proposed Solution, 28 Fordham Urban L. J. 587 n. 2 (2000). A study for the six years from 2006 to 2011 revealed that $348,274,595.81 was awarded in civil rights settlements and judgments against New York City police officers, of which $114,000 (0.03 percent) was required to be paid by police officers, and the study does not indicate whether some or all of even this amount was paid by the police union. See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 913, 962 (2014).

A few other thoughts. The videos are interesting not only because we can see what happened, but because they were probably made by civilians who decided to use their iPhones to record the incident. You can see a few of them standing with their cell phones out. Part of the video breaks away to someone who provides a brief summary of what happened before the cameras began rolling. One bystander is telling the officers how to do their jobs. Others are loudly objecting to the officers' actions ("What's wrong with you people?"). Had they kept it up, some of these meddlers could have been arrested for Obstructing Governmetnal Administration. And we also see that the sidewalk outside Starbucks is totally disgusting with cigarette butts and other garbage all over, some of it perilously close to Brown's face as the officers held her down in trying to place handcuffs on her.